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UNDERGROUND TRANSMISSION LINE & SUBSTATION PROJECT BO W D I TC H Bowditch&Dewey,LLP 311 Main Street PO Box 15156 Worcester,MA 01615 508-791-3511 bowditch.com Joshua Lee Smith Direct telephone: (508) 926-3464 Direct facsimile: (508)929-3064 Email: jsmith@bowditch.com October 26, 2018 By First Class Mail and E-Mail(tstpierre@a salem.com) City of Salem Inspectional Services 98 Washington Street, 2nd Floor Salem, MA 01970 Attn: Thomas St. Pierre, Inspectional Services Director Re: National Grid Underground Transmission Line and Substation Project a/k/a Beverly Regional Transmission Reliability Project Dear Mr. St. Pierre: We appreciate the time you, Dominick Pangallo, David Knowlton and Deborah Duhamel took on October 3, 2018 to meet with me and representatives of New England Power Company d/b/a National Grid ("NEP"), including Aidan Murphy, Matthew Spofford, Andrew Hruby, Sinan Ashkouri, Faith Hassell, Joshua Holden, Darin Swimm and Mark Rielly. The purpose of this letter is to summarize and confirm the conversations we had at our meeting with respect to NEP's underground transmission line work (the "New Transmission Line Project") in the Cities of Salem and Beverly, Massachusetts and associated new overhead/underground transition substation to be known as the Waite Street Substation (the "Substation Project") at 5 Ferry Street in Salem (the "Substation Property"). The New Transmission Line Project and the Substation Project are generally referred to as the Beverly Regional Transmission Reliability Project and herein as the "Project". 1. Project Description and Purpose. The New Transmission Line Project involves the replacement of an existing 115kV underground direct buried line with a new cable in conduit (the "New Transmission Line") to be located in a new route within various streets and ways in Salem and Beverly beginning at the proposed Waite Street Station, traversing to the existing Beverly Substation #12 and terminating at the existing East Beverly Substation #51 in Beverly. See aerial attached. The Substation Project includes the following primary components: BO W D I TC H Thomas St. Pierre, Inspectional Services Director October 26, 2018 Page 2 1. Installation of an approximately 24' x 14' control house (the "New Control House"); 2. Installation of substation-related equipment and facilities, including, but not limited to, termination risers, an approximately 75-foot tall dead-end structure, bus supports, terminators and surge arrestors and associated concrete pads; 3. Installation of a perimeter chain link security fence having a height of 8 feet plus 1 foot of barbed wire (the "New Fence"); 4. Grading and filling of crushed stone; and 5. Digging of cable trenches. See aerial and plans attached. II. Salem Zoning Ordinance. A. Zoning Districts and Use; Flood Hazard Overlay District. You confirmed that zoning regulations in the City of Salem are not applicable to underground transmission lines, and,therefore, no zoning-related permits or approvals will be required for the New Transmission Line Project in Salem. The Substation Property is located entirely within the Business Wholesale and Automotive ("134") zoning district and Zone AE of the Flood Hazard Overlay District ("FHOD") and no other overlay districts. The Table of Principal and Accessory Use Regulations set forth in Section 3.1 of the Zoning Ordinance provides that "essential services" use in the B4 zoning district requires a special permit from the Salem Zoning Board of Appeals (the "ZBA"). You confirmed that the Substation Project use constitutes essential services use, and that construction and operation of the Waite Street Substation will require a special permit from the ZBA for such use. In addition, you confirmed that a floodplain special permit will be required from the Salem Planning Board pursuant to Section 8.1.4 of the Zoning Ordinance, which requires the issuance of a special permit for the construction of buildings, structures and paved areas and earth disturbance in the FHOD. B. Dimensional Requirements. The Substation Property lot and the New Control House will comply with all applicable dimensional requirements set forth in Section 4.1.1 of the Zoning Ordinance, including, but not limited to, requirements pertaining to minimum lot area, frontage, width, yard setbacks and open space and maximum height, floor to area ratio and building coverage. Non-building substation and transmission-related equipment and facilities are not intended to be subject to minimum yard setback requirements or maximum height restrictions since they must be BOW D I TC H Thomas St. Pierre, Inspectional Services Director October 26, 2018 Page 3 designed to comply with the National Electric Safety Code.' The New Fence will not be subject to minimum yard setback requirements pursuant to Section 4.1.1 which provides that "[r]etaining walls, boundary walls and/or fences may be built abutting the property line. The height of the retaining walls, boundary walls and/or fences shall be measured on the inside face of the structure on the owner's side."Z Based on the foregoing, no dimensional zoning relief will be required for the Substation Project. C. Site Plan Review; Parking and Loading; Earth Disturbance. Site plan review will not be required for the Substation Project because no proposed structures or premises will exceed 10,000 gross square feet as set forth under Section 9.5.2 of the Zoning Ordinance. There are no landscaping requirements applicable to the Substation Project. Off-street parking and off-street loading requirements of the Zoning Ordinance do not apply to the Substation Project. Section 6.1 of the Zoning Ordinance provides that "[t]he quarrying of stone or the removal of topsoil, sand, gravel or subsoil by any person, firm or corporation on any parcel of land in the City of Salem shall be allowed only by special permit from the Board of Appeals [. . .]", except "where such removal or quarrying is necessarily incidental to or in connection with the construction, alteration, excavation or grading for a building, road or other facility involving a permanent chan[g]e in the use of the land [. . .]." You confirmed that the Substation Project falls within the scope of the exception, and, therefore, a special permit from the ZBA will not be required. 111. Energy Facilities Siting Board Approval and Zoning Exemptions. As we discussed at the meeting, NEP is required to petition the Massachusetts Energy Facilities Siting Board (the "EFSB"), an independent state board with the Massachusetts Department of Public Utilities (the "DPU"), for approval of the Project. The EFSB will review and determine whether the Project is necessary, will serve the public convenience and is The proposed dead-end structure will exceed the maximum 45-foot height restriction, and the dead-end structure and certain other non-building substation equipment and facilities will encroach into the 25-foot minimum rear yard setback requirement to the extent the rear lot line is on the opposite side of Waite Street and not Ferry Street. z Section 38-11 of the Salem Code of Ordinances provides that"[nlo barbed wire fence shall be built or maintained within six feet above the ground along any sidewalk located on or upon any public street or highway." There are no sidewalks along either Waite Street or Ferry Street,therefore,Section 38-11 does not apply to the New Fence. Nonetheless,the Company agreed to the City's request to orient the barbed wire inwards so that it would not extend over the public way. BO W D I TC H Thomas St. Pierre, Inspectional Services Director October 26, 2018 Page 4 consistent with the public interest. The EFSB will hold a public hearing in Salem at which time you and the citizens of the City will have further opportunity to comment on the Project. Legal notice of this public hearing will be published in the newspaper and will be sent directly to abutting landowners to the Project and certain City officials. NEP is not permitted to construct the Project unless and until it receives this approval from the EFSB. As we discussed at our meeting, while some local zoning relief would be required, it is difficult to ascertain the extent and nature of relief required given the unique use and facilities. Accordingly, NEP intends to petition the DPU for individual and comprehensive exemptions from applicable provisions of the Zoning Ordinance in accordance with M.G.L. c. 40A, §3 to achieve clear, consistent and efficient regulation of the Substation Project and ensure efficient adjudication of the relief required to allow the Substation Project to proceed in a timely manner. The comprehensive exemption would allow the Substation Project to go forward if a particular provision originally interpreted as not applicable to the Substation Project is later determined to be applicable. NEP would request that its petitions to the EFSB and DPU be consolidated for a single review process before the EFSB pursuant to M.G.L. c. 164, §69H. IV. Other_Approvals and Non-Applicability of State Building Code. As we indicated at the meeting, the DPU is authorized to exempt the Substation Project from only the City's Zoning Ordinance. Thus, NEP will obtain other necessary municipal permits for the Project as required by applicable provisions of the City's Code of Ordinances, including grants of location approvals, trench and street opening permits, and orders of conditions from the Conservation Commission. Although NEP does not intend to remove or prune any shade trees, if that were to change as the Project develops NEP would consult with, and obtain the requisite permit from, the Salem Tree Warden. Except for the New Control House and the New Fence, construction of the Substation Project will not require a building permit. As we discussed at the meeting, there is existing case law and an advisory opinion by the DPU, formerly DTE,that addresses the applicability of the Massachusetts State Building Code and municipal building codes and by-laws to public utility structures and facilities. As a follow up, I enclose a copy of Boston Edison Co. v. Town of Sudbury, 356 Mass. 406 (1969) and DPU Advisory Opinion dated October 31, 1989, along with a letter from Mark E. Slade, a former attorney for NEP, explaining the Company's position which was accepted by the DPU in its Advisory Opinion, which stand for the proposition that public utility equipment and non-building structures within a substation or a right-of-way, including underlying foundations, are not subject to the issuance of building permits. Based on this precedent, NEP typically obtains building permits for control houses and fences because they are buildings and structures of the type usually subject to building codes, but not for any other equipment or structures within a substation or a right-of-way. BO W D I TC H Thomas St. Pierre, Inspectional Services Director October 26, 2018 Page 5 If this letter does not accurately reflect what we discussed at our meeting or your interpretation of the Zoning Ordinance as applied to the Project, please contact me as soon as possible. NEP anticipates filing applications with the EFSB and DPU in the first quarter of 2019, and commencing work on the Project towards the end of 2021. NEP looks forward to making these essential system improvements in furtherance of continued reliable electric service to the City and surrounding areas. Thank you. Very truly yours, SJoshuLee Smith GB Enclosures cc: Aidan Murphy, National Grid Project Manager (w/encls.) Kalpana Dulipsingh, National Grid Project Developer (w/encls.) Matthew Spofford, National Grid Engineer (w/encls.) Andrew Hruby, National Grid Civil Engineer (w/encls.) Sinan Ashkouri, National Grid Lead Engineer (w/encls.) Faith Hassell, National Grid Community and Customer Manager (w/encls.) Joshua Holden, National Grid Lead Environmental Scientist (w/encls.) Darin Swimm, Hilltop Public Solutions Principal (w/encls.) Mark Rielly, National Grid Senior Counsel (w/encls.) j�d:jk Westlaw. 253 N.E.2d 850 Page 1 356 Mass.406,253 N.E.2d 850 (Cite as:356 Mass.406,253 N.E.2d 850) C size of structure from existing line over an easement Supreme Judicial Court of Massachusetts,Suffolk. which the company already controls. M.G.L.A. e. BOSTON EDISON COMPANY 164672. V. TOWN OF SUDBURY et al.FN' Electricity 145 0�'-'9(Z) FN I. The other parties to these proceedings, 145 Electricity consolidated in the Superior Court, are the 145k9 Transmission Facilities towns of Wayland, Sherborn,and Framing- 145k9(2)k.Permit or Consent by Public Au- ham,and the inspectors of buildings in Sud- thorities.Most Cited Cases bury and Wayland. Statutes giving selectmen power to impose reason- able regulations for erection of all lines for transmis- Argued Nov.4, 1969. sion of electricity and providing that no ordinance or Decided Nov.26, 1969. regulation will take effect until approved by depart- ment of public utilities refer only to regulations of Consolidated proceedings as to proposed electrical selectmen and are not intended to include a town transmission line with increased capacity. On reser- building by law adopted by town in meeting. vation and report by the Supreme Judicial Court of M.G.L.A.c. 166§§25,27. the County of Suffolk, Cutter, J.,the Supreme Judi- cial Court, Cutter, J., held that under statute permit- j Electricity 145 '9(2) ting an electric company to petition department of public utilities for authority to construct and use or to 145 Electricity continue to use a line for transmission of electricity, 145k9 Transmission Facilities electric transmission company must obtain certificate 145k9(2)k.Permit or Consent by Public Au- of public convenience and necessity for construction thorities.Most Cited Cases of any transmission line or line greatly increased in Department of public utilities in granting certificate capacity and in size of structure from existing line of public convenience for construction and use or over an easement which the company already con- continuance of use of line for transmission of elec- trols. tricity may properly consider aspects of safety such as a town in a comprehensive building bylaw might Case remanded. wish to apply to transmission lines.M.G.L.A.c. 164 672• West Headnotes W Electricity 145 X9(2) M Electricity 145 X9(2) 145 Electricity 445 Electricity 145k9 Transmission Facilities 145k9 Transmission Facilities 145k9(2)k.Permit or Consent by Public Au- 145k9(2 k. Permit or Consent by Public Au- thorities.Most Cited Cases thorities.Most Cited Cases Statute authorizing building codes was not intended Under statute permitting an electric company to peti- to provide authority for local regulation of construc- tion department of public utilities for authority to. tion of electrical transmission lines for which control construct and use or to continue to use a line for is largely entrusted to department of public utilities. transmission of electricity, electric transmission M.G.L.A.c. 143 &3;c. 164 6 72. company must obtain certificate of public conven- ience and necessity for construction of any transmis- j5j Electricity 145 x19(2) sion line or line greatly increased in capacity and in ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 253 N.E.2d 850 Page 2 356 Mass.406,253 N.E.2d 850 (Cite as:356 Mass.406,253 N.E.2d 850) 145 Electricity within authority, reasonably construed, granted by 145k9 Transmission Facilities enabling statute.M.G.L.A.c. 166&22. WOO k. Permit or Consent by Public Au- thorities.Most Cited Cases lu Electricity 145 X9(2) (Formerly 145k0(2)) Towns by their building codes could not regulate 145 Electricity proposed electrical transmission line or its constituent 145k9 Transmission Facilities electrical transmission structures for which control ]45k9(2)k.Permit or Consent by Public Au- was by statute largely entrusted to department of pub- thorities.Most Cited Cases lie utilities.M.G.L.A.c. 143 &3;c. 164§72. Despite prior grants by town selectmen to electric transmission company as to locations under or across W Electricity 145 X9(2) public ways for electrical transmission line,company was required to obtain new grants of such locations 145 Electricity as to public ways for line of substantially increased 145k9 Transmission Facilities size over same areas covered by prior grants. 145k9(2)k. Permit or Consent by Public Au- M.G.L.A,c. 166 44 21,22 27,y$. thorities.Most Cited Cases Locations granted by selectmen under statute provid- 1 10 1 Electricity 145 X9(2) ing for order granting location under or across public way for electric transmission line are granted in rela- 145 Electricity tion to and refer to substantially particular type and 145k9 Transmission Facilities magnitude of transmission line and of construction 14500 k.Permit or Consent by Public Au- discussed when application is made to selectmen and thorities.Most Cited Cases though a location may be interpreted as permitting Under statute permitting department of public utiii- reasonable variations from and replacements of par- ties to grant electric transmission company a location ticular structures proposed or in contemplation at the under or across public way on refusal of town se- time,the grant does not include authority for substan- lectmen if locations have been granted in two cities tial changes.M.G.L.A.c. 166&&21,L2,2_7 28. or in an adjoining city and town or by majority of towns, department's jurisdiction when substantially Jl Electricity 145 X9(2) increased line is contemplated depends on towns' actions in relation to the increased line as well as the 145 Electricity original line.M.G.L.A.c. 166§28. 1451<9 Transmission Facilities 145k9(2) k. Permit or Consent by Public Au- 1111 Electricity 145 X9(2) thorities.Most Cited Cases Any doubt concerning locations granted by selectmen 145 Electricity to electric transmission company for location under 145k9 Transmission Facilities or across a public way for transmission line should be 145k9(2)k. Permit or Consent by Public Au- resolved in favor of public and against grantee and thorities.Most CitedCases against any implication of relinquishment of public Despite dispute as to whether town complied with rights.M.G.L.A.c. 166&&21,22,27,28. procedural requirements for obtaining road and whether it adequately acquired land for the road, IM Electricity 145 X9(2) electric transmission company could properly obtain locations across or under road by compliance with 145 Electricity statutes providing for grants by town selectmen as to 145k9 Transmission Facilities such locations.M.G.L.A.c. 166H 21,22,27,28. 145k9(2)k. Permit or Consent by Public Au- thorities.Most Cited Cases LU2 Electricity 145 X9(2) Grants of locations or licenses in public ways by se- iectmen acting as agents of Commonwealth must be 145 Electricity 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 253 N.E.2d 850 Page 3 356 Mass.406,253 N.E.2d 850 (Cite as:356 Mass.406,253 N.E.2d 850). 145k9 Transmission Facilities ties,355 Mass, 138.244 N.E.2d 281. 145k9(2)k.Permit or Consent by Public Au- thorities.Most Cited Cases *408 The general location of the proposed and cer- Fact that electric transmission company had not ob- tain related lines is shown on the attached sketch map tained grants by town selectmen as to locations for (which does not purport**853 to be drawn to scale). lines across or under roads would not prevent contin- The proposed line is to be on steel towers and is to ued construction of proposed line elsewhere in those run about seventeen miles over an existing route 250 towns until such rights were granted, but company feet wide, over which Edison has maintained one or was prohibited from transmitting electricity over any more overhead transmission lines.The Department of land, right-of-way or other easement taken by emi- Public Utilities (D.P.U.) has made various past.de- nent domain until rights in town ways were obtained. terminations of public convenience and necessity, M.G.L.A.c. 164&72;c. 166§4 21,L2. *409 affecting the route or parts of it, and various *407 **851 James M. Carroll, Donald R. Grant and authorizations to make eminent domain takings of John J. Desmond, III, Boston,Mass., for Boston Edi- easements. Edison concedes,however, that these 'do son Co. not include a specific authorization under* * * G.L. c. 164,s 72, as amended)to construct the* * * (pro- Philip B. Buzzell and Joseph P. Warner, Boston, posed) 230 KV line.' The D.P.U. has specifically Mass., for the towns of Sherborn,Sudbury and Way- exempted the lands within the strip 250 feet wide and land; Theodore Chase,Town Counsel, for the Town the proposed structures from the operation of the zon- of Sherborn; John M. Kahn, Town Counsel, for the ing by-laws of Medway, Sherborn, Framingham, **852 Town of Framingham; C. Peter R. Gossels, Wayland,and Sudbury,to the extent that they may be Town Counsel,for the Town of Wayland;and Earl F. used for the transmission lines described before the Nauss,Jr.,Town Counsel,for the Town of Sudbury. D.P.U. in its opinion (D.P.U. 15192, March 29, 1967).M See the Framingham case,355 Mass. 138, Robert H. Quinn, Atty. Gen., and William E. Sear- 140-143, 145-148,244 N.E.2d 281. son, 111,Asst. Atty. Gen., for the Department of Pub- lic Utilities,amicus curiae. FN2. The D.P.U. in that decision described the purposes of the proposed 230 KV line as Before *406 SPALDING, CUTTER, KIRK, 'to relieve an anticipated deficiency in the SPIEGEL and REARDON,JJ. transmission capacity * * * needed to meet the aggregate electrical loads in * * * Sud- CUTTER,Justice. bury, Wayland, Waltham, Lexington, and Woburn,to strengthen the western side of* * * (Edison's)transmission ring,and to pro- The plaintiff(Edison)proposes to construct an over- vide* * *Edison 4 * *with a connection to head line for the transmission of electricity at * **the New England Grid.'Three 345 KV 230,000 volts (230 KV)between an existing Edison lines(see sketch map)connect the Grid with substation in Medway and one in Sudbury.Questions Edison's Medway substation. From there concerning this or related transmission lines have Edison plans to transmit power (230 KV) been before this court in Town of Sudbury v. De- over the proposed line to Sudbury. From partment of Pub. Util.. 343 Mass. 428, 179 N.E.2d Sudbury, Edison hopes to transmit power 263 the.first Sudbury case),and 351 Mass.214.218 (115 KV) to Waltham over a line already N.E.2d 415 (the second Sudbury case); in Boston constructed(see sketch plan). Edison Co. v. Board of Selectmen of Concord, 355 Mass.79,242 N.E.2d'868(the Concord case);and in Town of Framingham v. Dcp _ent of Pub. Utili- 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 253 N.E.2d 850 Page 4 356 Mass.406,253 N.E2d 850 (Cite as:356 Mass.406,253 N.E.2d 850) 1i�:•.•. coNcolt° is it Ctortt:y trend: <.`rl.YNtStD ;r.A•Hitr.,d st. ;' ////////// EExINcrWt '�j P S::aarr St. x•torte 1,; bra AA-St... d o-Yrurrn .e. s '{d. LINCOLN \ Ady%Sr. n•o.v.xul Rd. ' ••o• Lsvrnnt it. r-perry ft. Ct•Heade.•vIw Rd. E• Kln;hrop!t. 0• ►torp.[.St. y?:r. F. Hill St. R•Rr edatl Ave, t• Wer folk St. t-Y. Cent rel St. r•Hill St. :�l- 11r\t !<• Y-.ornate St. SUDBURY r fiicnry st. v W.,...t.,se: WALTHAM ••R-Ya.hlc,,toa St. Y'tach/,::ata Rd, I: iror\7t. R• Span St. J" , lis bV ttrcal t. L !•L.hr R.,. r ?y'�Y•h'hi t•r7 31. (Ona neo is,ei.ltt) 94: :- old conn. r..th 2r :ds WESTON L1AL.80ROUG11 ,<, - .AYLAND xEI+IOR 4yt`?:y:::•Y ..rS.iauet: . .u<:.:1 .'�y'L\•_4:•:.:::.::a,Y.r:o?ovd: 1 :IS113 kv tY hr<ua t` ,,p`•{?t''.:.: "•]< ..d 1-7)0 tV prtuut fit.f'.:':%•:>'r`::<; , :. X. C '+`Gl_L1ii12:%].. "?! i- W --^"' FRAI.IINGHAF,1 SCUTI';OROUGH1] > , V 2i:f+�s:," •:;:`•::; :;^;::::2;:;: NATICK NEEDHAM V Lit • �i j T rope+.ndd. 1.2IEROORNJ 70\v 13►v nrc.rt' S HOPKINTON t,r.ur t, ` DOVER 4, M �a 1 NQL Shown: One 1 Iw K ` 17.8 kV Ctreuit in SMrborn• 'htec 1HOLLISTO;_ 13.8 kV Ctrculra 1 Hyl 1� MEDFIELD .,.FronvirtgharrSedtairy 1 G a J • � a \ l �'•�.+ Zr;,:..:ai j 1 �r� nE MILLIS t I c• 22:.x.' ; aa;`.•:'""•r. 6IEDVIAY F{2TI::.� �:. t t..n` :, lti•;t, .�`?: WALPOLE it to `;;:' i:: r I•�%r::TC17� "'-_,. / ;•:i.:+.. '':�?f : ;:••:`'�^'.•••`• �:�;:] I.O. 1 )y:;, :'t ••••,;;;� 4rstnrn 7srritor �/• •.::fi::•:.:•:..::::'i::::.:.•>:.;:: ..Transwi.asion Cnnnncttnttr of� Boston Wiwi Cm.p. h t;�,• a ,J)_, (Not drams to scale) ' towns respectively. He denied applications of these In the summer of 1969,Edison brought in the Supe- towns for preliminary injunctive relief against further rior Court declaratory proceedings against the build- construction by Edison. ing inspectors of Sudbury and of Wayland. The towns of Sudbury,Wayland,Sherborn,and Framing- On August 6, 1969,acting under G.L.c.214,s 22,as ham(the towns and the building inspectors of two of amended by St.1948, c. 309, a single justice of this them are, for convenience, collectively referred to as court, in the county court,enjoined further construc- the towns)brought bills in the Superior Court against tion of any part of the proposed line. The full court Edison for declaratory and other relief. This litiga- on October 3, 1969, denied Edison's petition to dis- tion,consolidated in the Superior Court(fn. 1),raises solve this order. Another *410 justice of this court the issues discussed below. A Superior Court judge then entered an order(October 6, 1969) transferring enjoined the building inspectors of Wayland and of to the county court all the cases mentioned above Sudbury from enforcing the building.codes of these then pending in the Superior Court,See G.L.c.211.s C 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 253 N.E.2d 850 Page 5 356 Mass.406,253 N.E.2d 850 (Cite as:356 Mass.406,253 N,E,2d 850) 4A, inserted by St.1962, c.722, s 2.The parties, act- 72,as most recently amended,before Edison ing with great expedition, have submitted a consoli- ** *(may)construct the(proposed) line* * dated statement of agreed facts. The cases have been * on an easement or right of way already reserved, without decision, for the determination of owned or controlled by it;(2)the applicabil- the full court. ity * * * of the (Sudbury and Wayland) building codes * * * to the construction of Portions of the right of way between Medway and the(proposed)230 KV line* ** (3)the suf- Sudbury are already used for transmission lines(13.8 ficiency of Edison's rights,if any,under* * KV and 115 KV)supported on wood poles,described *G.L. c. 166.ss 21,22 and 28, as most re- by the D.P.U. as 'from 65 to 80 feet' in height 'de- cently amended,to* * *construct the wires pending on the terrain.' The contemplated construc- ** *across various public ways which lie in tion, on the other hand (see the Framingham case, the path of its easement * * * and (4) 355 Mass, 138, 140-141,244 N.E.2d 281)is to be on whether * * * Stock Farm Road in * * * `two circuit, wide base, lattice type, steel towers Sudbury is a'public way' within * ** G.L. varying in height from 110 to 125 feet,except at cer- c. 166,ss 21,22,and 2$.' tain substations where the towers would be 160 feet in height. The structures would be spaced * * * I, On the first controversy, the towns contend that (about) 1,000 feet apart.Clearance above the ground Edison must obtain from the DY.U. a determination of the wires suspended from such structures would be of public convenience and necessity under G.L. c. not less than twenty-five feet,and over highways not 164, s 7272, as amended (see fn. 4). Edison, however, less than twenty-eight feet.' The towns greatly fear points out (a) that so much of the proposed route as the line's 'deteriorating effect on aesthetic and prop- lies within Sherborn (as was not already controlled erty values as well as safety considerations.' by Edison) was acquired by Edison in 1941 under D.P.U. orders of May 13 and July 29, 1941, and(b) **854 Edison in 1967 began to build the proposed that portions of the route in Framingham, Wayland, line in Medway, Holliston, Sherborn, and Natick. and Sudbury, not then owned or controlled by Edi- These four towns did not appeal from the DY.U.'s son,were acquired by eminent domain either in 1953, decision which resulted in the Framinaham case,355 pursuant to an order of the D.P.U. of November 30, Mass. 138, 244 N.E.2d 281,By December, 1968,the 1951, or in 1955, pursuant to D.P.U. orders of July proposed line had been constructed between the 28, 1955. See Cole v. Boston Edison Co.. 338 Mass. Medway substation and the Natick-Framingham 661, 157hI.E.2d 209. Edison then argues, in effect, boundary.After the decision in the Framingham.case, that, because it already controls some easement over Edison started to build parts of the proposed line in all the proposed route(except across certain streets or Sudbury. There has been no further construction roads; see parts 3 and 4 of this opinion),there is no since the injunction issued by the single justice on occasion for it to obtain from the D.P.U. any deter- August 6, 1969. No wires, forming part of the pro- mination of public convenience and necessity under posed line, have been installed over or under any c. 164,s.72. In practical effect,Edison contends that public ways (mentioned later in part 3 of this opin- X72 does not require a transmission company to ob- ion)in Framingham and Wayland as to which Edison tain any certificate of public convenience and neces- has no presently existing rights of record under G.L.. sity for construction of any transmission line (or of a c. 166,ss 21,22,or 28,or over or under Stock Farm line greatly increased in capacity and in size of struc- Road in Sudbury(see part 4 of this opinion). ture from an existing line) over an easement which the company already controls. Edison (as indicated *411 The parties have agreed that there are four prin- above)has agreed that,as to'the line from the Med- cipal controversies presented by the present re- way substation to the Sudbury substation' now pro- cord.FN'These are discussed separately below. posed, 'Edison has never obtained any specific ap- proval of any *412 part of* * * (the) line by the FN3. The consolidated statement of agreed D.P.U.' under s 72, and contends that no such ap- facts says these are: '(1) whether a further proval is now required. determination of public convenience and ne- cessity is required under* * *G.L.c. 164.s The first controversy requires reg xamination of G.L. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 253 N.E.2d 850 Page 6 356 Mass.406,253 N.E.2d 850 (Cite as:356 Mass,406,253 N.E.2d 850) c. 164. s 72 (as amended through St.1965, c. 457), scribed in the order of the department. The which is set out in the margin.fm There have been department shall transmit a certified copy of inserted **855 in the text of"in brackets various its order to the company and the clerk of capital letters for the purpose of convenient refer- each such town. The company may at any encu to the portions of the section immediately time before such hearing,change or modify following these letters,respectively. the whole or a pan:of the route of said line* * *. (E)If the department dismisses the pe- FN4 Segtion 72, as amended, reads: '(A) tition at any stage in said proceedings, no An electric company may petition the de- further action shall be taken thereon,but the partment for authority to construct and use company may file a new petition after the or to continue to use as constructed or with expiration of a year from such dis- altered construction a line for the transmis- missal. (F)When a taking under this section sion of electricity for distribution in some is effected, the company may forthwith,ex- definite area or for supplying electricity to cept as hereinafter provided, proceed to itself or to another electric company or to a erect, maintain and operate thereon said municipal lighting plant* * * and shall rep- line. * * * (G)No lands or rights of way or resent that such line will or does serve the other easements therein shall be taken by public convenience and is consistent with eminent domain under * * * this section in the public interest. (A-1)The company shall any public way,public place, park or reser- forward at the time of filing such petition a vation * * * and(H) no electricity shall be copy thereof to each city and town within transmitted over any land, right of way or such area. (See fn. 5, infra.) The company other easement taken by eminent domain** shall file with such petition a general de- * until the electric company shall have ac- scription of such * * * line and a map * * * quired from the * * * selectmen * * * all showing the towns through which the line necessary rights in the public ways or public will * * * pass and its general location. The places in the town or towns, or in any park company shall also furnish an estimate or reservation,through which the line will or showing * * * the cost of the line and such does pass.' additional * * * information as the depart- ment requires. The department, after notice FNS. To avoid possible confusion, the and a public hearing in one or more of the bracketed letters have not been changed towns affected,may determine that said line from those used in 1962 in reproducing s 72 is necessary for the purpose alleged,and will in the first Sudbury case, 343 Mass. 428, serve the public convenience and is consis- 430, 179 N.E.2d 263 fn. 2. except that im- tent with the public interest. (B) If the mediately following the new bracketed (A- company(C)shall file with the department it 1) is a sentence later inserted by St.1965,c. map * * * showing (D) the towns through 457. which * * * (the line) will * * * pass, the public ways, railroads * * * (and)navigable *413 The earliest predecessor of s 72 is found in . streams * * * in the town(s) * * * which it St.1914,c.742,s 128.The section,revised in various will cross, and the extent to which it will be respects thereafter, was initially considered in detail located upon private land or upon, under or by this court in the first Sudbury case,343 Mass. 428, along public ways and places, the depart- 179 N.E.2d 263. There we had to decide whether an ment, after * * * notice * * * shall give a appeal under G.L. e. 25. s 5 (as amended through public hearing * * * in one or more of the St.1956,c. 190),by the town of Sudbury from D.P.U. towns through which the line * * * is in- action under the first sentence of ss 72 was 'from the tended to pass and may by order authorize final decision of the (d)epartment.' There was thus the company to take by eminent domain un- occasion to ascertain what the Legislature had Con- der* * * (c.79) * * * such rights of way or templated as the D.P.U.'s procedure under the 'not widenings thereof, or other easements wholly clear' language ( 343 Mass. 428, 431, 179 therein necessary for the construction and N.E.2d 263,266)of s 72. We interpreted the section use * * * of such line along the route pre- 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 253 N.E.2d 850 Page 7 356 Mass.406,253 N.E.2d 850 (Cite as:356 Mass.406,253 N.E.2d 850) as follows; '(1) Initially,a company wishing to build refusals to grant locations across public a transmission line must file with the department a ways,the department is in each instance ex. petition(see point(A))for'authority to construct and ercising a separate function as to which, in use * * * a (transmission) line.' The appropriate de- the light of the competent evidence before it, partmental action upon such a petition, if* * * ap- it must make a determination. * * *(E)ach proved* * * is a determination that* * *(the)line is stage * * * is a separate proceeding' in necessary* * *will serve the public convenience and which 'all relevant questions of the public is consistent with the public interest. (2) if the com- convenience and necessity must be consid- pany cannot acquire the necessary right of way by ered'(emphasis supplied). negotiation, the company (see portion of LM be- tween points(B)and(E))may file detailed plans with In the first Sudbury case.343 Mass.428, 179 N.E.2d the department, which then * * * may `by order 263. Edison planned to apply later for the power to **856 authorize the company to take' by eminent take easements by eminent domain. Such an applica- domain * * * the necessary * * * rights of way over tion was in fact made in the second Sudbury case, privately owned land. The company may file a sepa- 351 Mass. 214, 215-216, 218 N.E.2d 415. Eabh of rate petition for this authority to take land by eminent these two cases, therefore, involved either later or domain. If there is no occasion for an eminent do- immediate.eminent domain proceedings. Neverthe- main taking (as, for example, because all necessary less, the language of the first Sudbury case, already land can be acquired by negotiation), then the com- quoted(see in. 6 and related text of this opinion)did pany need file no such second petition.After such an not limit the first sentence of X27 to cases involving order for an eminent domain taking(see point(F)),or some eminent domain action. without such an order if no eminent domain taking is necessary, the company `may forthwith, except as In the Framingham case, 355 Mass. 138, 141-143, hereinafter provided, proceed to erect, maintain and 244 N.E.2d 281. Edison contended that s 72 had no operate* * * (the)line."E�Ifi The interpretation of s 72 application whatever unless a transmission company in the first Sudbury*414 case was quoted with ap- proval in the second Sudbury case. 351 Mass. 214, must have resort to eminent domain proceedings. 217,218 N.E.2d 415. See Town of Hamilton v. De- This issue we then declined to consider for reasons eartment of Pub. Utilities, 346 Mass. 130, 144-146, there stated.We held merely that`a proceeding under 190 N.E.2d 545. c. 40A, s 10' (for exemption of the line from local zoning bylaws) `may go forward independently of a proceeding under s 72.' In the present case,we must FN6. Discussion of further portions of s 72 deal with Edison's contention that the first two Sud- in the first Sudbury case need not be quoted bury cases resulted in an unduly broad application of at length. We pointed out ( 43 3 Mass. 428. s 7 •See 9 Ann.Surv.Mass.Law,s 15.2, 433, 179 N.E.2d 263,267)that no'construc- tion across public ways can be undertaken, Edison refers to the long,ambiguous legislative his- until such permission is given by the appro- tory of s 72, argued and considered in the first priate local authorities.See G.L.c. 166,s 21 Sudbury case 343 Mass 428 431 179 N.E.2d 263 (as amended through St.1951,c.476,s 1);s Edison's position,in summary,is that St.]914,c.742, 22 (as amended through St.1948, c. 550, s s 128,was necessary(see Comiskey v.City of Lynn. 36); and L25 (as amended through St.1951., 226 Mass.210,212-214, 115 N.E. 312)to permit any c. 476, s 2). If such permission is not eminent domain takings for transmission lines, and granted,Edison may then have resort to ap- that to provide for *415 such takings (under the su- propriate proceedings under G.L. c. 166._s pervision of a public predecessor of the D.P.U.) was 28 (as amended through St.1961, c. 466);' the sole objective of the 1914 enactment which came We also said, 'In considering(a)whether a as a part of a comprehensive consolidation of statutes transmission line shall be authorized at all, Sett relating to the distribution of gas and electricity. upon an initial petition under s 72; (b) whether eminent domain takings, if neces- sary, will be authorized by order; or (c) FN7�The 1914 act was preceded by various attempts whether to exercise its authority,under G.L. obtain legislation. See Res. c. 166, s 28, as amended, to overrule local 1910,c. 555 (which called upon the D.P.U.`s 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. i 253 N.E.2d 850 Page 8 356 Mass.406,253 N.E.2d 850 (Cite as:356 Mass.406,253 N.E.2d 850) predecessor 'to investigate the circum- stances affecting the transmission of elec- Fib, See Board of Gas and Elec. Light tricity' and to examine the laws relating to Commrs.32d Ann.Rep.pp.2-3,which reads the location of transmission lines and the au- in part: 'When the laws relating to the* ** thority of local and certain State officials distribution * * * (of)electricity were codi- with respect thereto); 1911 House Doc. No. fied and extended in * * * (St.1914, c.742) 1185, pp. 1822; Res. 1912, c. 51 (calling a new section(128)was introduced,giving a upon the D.P.U.'s predecessor to make the limited power of eminent domain for the investigation which resulted in the 1914 construction of(electric transmission) lines consolidation); 1913 Pub.Doc. No. 35, pp. * * *. As a condition precedent to the exer- 14,376a; 1913 1Iouse Bill No. 1925,pp. 15- cise of this power,it had first to appear,after 16; 1913 Senate Bill No. 581, pp. 42-45; a public hearing, that the company had ac- 1914 Senate Bills Nos. 129,575. quired rights in the public ways or over pri- vate lands for more than three-fourths of its **857 Section 128 of the 1914 act appeared under a length in the * * * town * * * and that the heading 'Taking land for Transmission Lines.' Its line was necessary and will serve the public text,however,was more broadly expressed.The first, convenience and be consistent with the pub- second, and third sentences were phrased in terms lic interest. Experience * * * has developed closely similar to the first,third,and fourth sentences a serious embarrassment in that a company of s 72 (see fn. 4, at point(A)). The balance of the has no occasion or even right to invoke the first paragraph of s 128,however,varied from s 72.It Board's authority until it has purchased or provided that'if it appears(to the D.P.U.'s predeces- optioned not less than three-fourths of the sor board)that the petitioner has rights in the public length of the line in each * * * town * * * ways or lanes of such * * * town, or over private and is held up by a few landowners with lands * * * for not less than three fourths of the whom it cannot trade at all or upon reason- length of its * * * line in * * * (that)town, and if in able terms. At this stage the Board is called the(board's)opinion* * *said line is necessary* * * upon to pass for the first time upon the ques- and will serve the public convenience and is consis- tions which are fundamental to a proper ex- tent with the public interest, the board may by order ercise of eminent domain * * * (T)here authorize the company to construct or to continue to should,in the Board's opinion,be first a pre- use such line.' The second paragraph,without provi- liminary hearing and decision upon the sion for further hearing,authorized the company after broad question of the public convenience such an order to make eminent domain takings upon and necessity to be served by the line.If this terms which need not be stated.The requirement that is decided affirmatively,and the company is a specific portion of the right of way be acquired in unable subsequently to acquire rights * * * advance of any determination of public convenience further hearings and decisions in the same and necessity somewhat points to that determination way as at present provided may then be had as being preliminary and related to the permission to looking directly to the exercise of eminent use eminent domain later granted by the section.This domain indication may have been modified, however, by St.1917,c. 141 (entitled'An Act Relative to the Con- LH It is possible, as Edison argues,to view the lan- struction of Lines for the Transmission of Electric- guage of both the 1914 and the 1917 act(and of the ity').Section 128 was amended to provide for at least board's recommendation,in.8),as requiring petitions a two stage proceeding,*416 following a recommen- only with respect to situations where eminent domain dation of the D.P.U.'s predecessor board (see 1917 later was thought likely to be **858 necessary. House Doc.No.139, pp.2-3)EM which permitted first Doubtless, a principal purpose of including s 128 in a preliminary hearing and order on public conven- the 1914 consolidation was to provide a procedure ience and necessity, without any showing of acquisi- under which eminent domain takings for transmission tion of any part of the right of way,and later a second lines could be made.The language of s 128,however, hearing and order directed to the exercise of eminent may also be given a broader significance,particularly domain upon such a showing upon terms somewhat after the 1917 amendment.The early part(and espe- modified from the 1914 version. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 253 N.E.2d 850 Page 9 356 Mass.406,253 N.E.2d 850 (Cite as:356 Mass.406,253 N.E.2d 850) cially the first sentence)of what is now s 72 permits view on this issue stated by him in the Framingham am the interpretation that there shall be a determination case, 355 Mass. 138, 142.244 N.E.2d 281)that Edi- of public convenience and necessity (for which an son must obtain D.P.U. approval of the proposed line electric company is given permission to apply)as a under the first sentence of 172. condition precedent to any new or substantially changed transmission line. This determination*417 FN9. Statutory changes in s 72 between would be a natural requirement for the Legislature to 1917 and our 1962 decision in the first Sud- impose upon any public utility with respect to pro- bury case do not help materially in interpret- posals to build substantial,potentially dangerous,and ing the statute.See 343 Mass.428.431, 179 costly transmission lines and structures which may be N.E.2d 263,and fn.3. seriously damaging to communities in the Common- wealth through which the lines are to pass. 2.It is far from clear that either the Sudbury building code or the Wayland building code by its own terms Our interpretation of the first part of ss 72 in the first has any substantial application to electric transmis- Sudbury case is consistent with that for which the sion lines. We assume,however,without so deciding, towns contend,although the language of the decision that the language of one code or the other does have could now be limited to situations requiring eminent some relevance to the proposed line.Neither building domain. Following the 1962 first Sudbury case,how- code has been approved by the D.P.U. under G.L.c. ever, the Legislature (which must be taken to have 166. s 27, quoted later. Edison has never applied for known of the 1962 decision;see Doherty.v.Commis- any permit under either code. sioner of Insurance,328 Mass. 161, 164, 102 N.E.2d 496),enacted St.1965, c. 457(entitled, 'An Act Re- Building codes are authorized by G.L. c. 143. s 3 (as quiring Certain Public Service Corporations which amended through St.1968, c. 499, s 1).This statute Petition the Department of Public Utilities for had its origin in St.1872, c. 243 (see Enos v. City of Transmission Rights in an Area to Forward a Copy of Brockton, 354 Mass. 278, 280, 236 N.E.2d 919). Said Petition to each City and Town in said Area'). which was enacted,of course,long prior**859 to the This inserted(see fns.4, 5,supra, at point(A-1))the era of modem electric transmission lines.Edison con- present second sentence of L72,without making any tends not only that c. 143, s 3, was not intended to clarifying change in the first sentence.Upon this en- permit town regulation of transmission lines,but also actment, the Attorney General (in behalf of the that Wayland and Sudbury under their town building D.P.U.), in a helpful brief as amicus curiae,relies in codes cannot regulate such lines under c. 143,s 3,in asking us to adhere to our views in the first Sudbury the face of the large body of general State regulation case. of such lines and the companies which maintain them. EHIQ The legislative history is not conclusive.FN9 Even if what is now s 72 was intended originally only to have FN10.See e.g.G.L.c. 164,ss 71,72(see fn. the-limited effect for which Edison contends, in its 4,supra),and s 76. See also c.81,s 7D(in- present form it is susceptible of the broader interpre- serted by St.1948, c. 449); c. 92, s 13 (as tation. We recognize that the 1914 act was passed at a amended through St.1950, c. 518, s 2), ss time when there was less regulation of public utilities 43-47 (as amended); c. 132, s 34A (as and land use,and prior to any modern zoning regula- amended through St.1950, c. 574);c. 132A, tion. To adopt the limited construction, however, �3 (as amended through St.1964, c.365);e. would deny in some instances to the D.P.U. (apart 164, s 73 (as amended by St.1926,It. 257). from any other regulatory powers which it may pos- Other relevant sections include G.L.c.85,ss sess; see fn. 10) control over transmission lines, 8 9• c 166,ss 21,22,28 each as amended. which it must exercise in any event if eminent do- main or disregard of local zoning will be necessary,a St. G.L. c. 84, ss from h inserted by control which strongly *418 tends to ensure protec- cion ( s c.opposed s 1, from which trans are Sion (as opposed to distribution) lines are tion of the public interest and which is within the excluded. Sees e . See also s 21F, in- statutory language. A majority of this court hold(al- serted by St.1969,c.882. It should be noted though Mr, Justice Reardon adheres to the different that by G.L. c. 164, s 76C, inserted by 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 253 N.E.2d 850 Page 10 356 Mass.406,253 N.E.2d 850 (Cite as:356 Mass.406,253 N.E.2d 850) St.1969,c.645,the D.P.U.has recently been Mass. 130, 145, 190 N.E.2d 545,that among factors given broad power to establish rules and to be included were 'the safety of overhead wires,' regulations consistent with c. 164. The At- The elements to be considered, in our opinion, also tomey General's brief indicates that the include other aspects of safety such as a town in a D.P,U. has in preparation safety regulations comprehensive building by-law might wish to apply affecting transmission lines. The record re- to transmission lines. Section 72 permits the *420 veals no D.P.U, regulations under L7&,or D.P,U. in taking action thereunder to prescribe rea- earlier provisions of law, which affect the sonable conditions for-the protection of the public present issues. safety. Similar considerations would lead to like con- clusions with respect to D.P.U. action under G.L.c, j�No short answer is to be found in G.L. c, 166,s 40A,s 10,and c. 166.s 28,as amended. 27.Section 25(as amended through St.1951,c.476,s 2)gives selectmen power to impose reasonable regu- M5 General Laws c. 143, s 3, has been broadly lations for the *419 erection of all lines 'for the construed. Exceptions to s **860 3 have been inter- transmission of electricity'with an exception not here preted strictly. See Slack v. Inspector of Bidgs. of pertinent. It is expressly directed that in cities regula- Town of Wellesley, 262 Mass, 404 406-407. 160 tions 'shall be made by ordinance.' Section 27 pro- N.E. 285, See also M. Spinelli & Sons Co. Inc. v. vides, 'No ordinance or regulation of a city or town, City of Cambridge, 306 Mass, 342, 343, 28 N.E,2d or regulation or restriction imposed in a grant of loca- 240,Nevertheless,we think that s 3 was not intended tion,affecting the erection,maintenance or operation to provide authority for local regulation of the con- of a line for the transmission of electricity for light, struction of transmission lines, control over which heat or power extending or intended to extend from has been so largely entrusted to the D.P.U. Cf.how- some point in one city or town through or to some ever, Board of Assessors of Holyoke v. State Tax point in another city or town, shall take effect until Comnt.. 355 Mass, 223, --, - 244 N.E.2d 287 F t approved by the department of public utilities' (em- is plainly desirable that there be some uniformity in phasis supplied). Sections 25 and 27 originally ap- the safety standards applicable to such lines which peared in one section as St.1914, c, 742, s 132. The pass through more than one town or city and are of sections, without explanation, were separated in the general regional or Statewide interest. Such uniform- 1921 recodification of the General Laws. We think ity can hardly be achieved if the standards are left that the word 'ordinance' in the first line of s 27, in solely to local building codes.The nature of the pub- the light of the language of s 25 (originally the first lic need thus sheds some light upon the probable leg- sentence of the 1914 statute,s 132),can refer only to illative intention behind s 3. We conclude,upon the action by a city under s 25, that 'regulation' in that basis of these considerations, that the building by- line refers only to regulations of selectmen made un- laws of Sudbury and Wayland can have no applica- der s 25, and that the word'regulation' and the word tion to the proposed line or to its constituent electrical 'ordinance' in s 27 are not broad enough to include a transmission structures(as opposed to buildings of a town building by-law which must be adopted by the type usually subject to building codes). town in meeting and not merely by the selectmen. The omission in s 27 of any reference to town action FNa.Mass.Adv.Sh.(1969) 133, 145-150. by by-law may have been a legislative inadvertence, but we must apply the statute as it reads in the light 3.The third issue is whether Edison already has suf- of its legislative history. ficient permits and easements to allow it to construct the proposed line across public ways which lie in its V1 In various respects [see fn, 10],the general regu- route. See G,L, c. 166, ss 21, 22, and 2$. In the lation of transmission lines,on a reasonably compre- Framingham case, 355 Mass. 138, 143-144, 244 hensive basis, has been placed in the A.P.U. (and in N,E.2d 281,285, we said that the decision did 'not particular instances in other State bodies especially relieve Edison from * * *procuring such permissions where State property may be affected). The D.P.U., as may be required under G.L. c. 166 before con- in granting a certificate of public convenience under structing the new line' (citing the Concord case. 355 c. 164, s 72, is to consider all aspects of the public Mass.79.242 N&2d 868). interest. We made note in the Hamilton case. 346 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 253 N.E.2d 850 Page 11 356 Mass.406,253 N.E.2d 850 (Cite as:356 Mass.406,253 N.E.2d 850) Edison states in its brief that it has sought review by the D.P.U. of the Framingham selectmen's denial of There has been some D.P.U. action or discussion Edison's petition to cross Speen Street (point X on concerning grants of locations on the proposed route attached sketch map)and Cochituate Road (point W and later increases in the size of transmission lines. on sketch map)at *421 new points because of a tak- For example, Edison in 1952 obtained (D.P.U. ing by the Massachusetts Turnpike Authority. A peti- 10047)on D.P.U. review of the Wayland selectmen tion to cross two new public ways in Wayland under G.L.c• 166,s 28,a location across Stonebridge (sketch map, points BB and CC) is pending before Road (point AA on sketch map). *422 This was not the Wayland selectmen. It will be observed from the expressly limited as to size of structures buy only as map that various other street or road crossings lie to number of wires. In 1951,in proceedings concern- along the proposed route. As to these (except Stock ing portions of the present route, the D.P.U. men- Farm Road in Sudbury)Edison at times between July tioned that it was 'important to Edison * * * that its 14, 1941, and January 6, 1953, obtained various or- plans * * * be sufficiently elastic to provide for(a) ders for grants of locations. All these appear to be second circuit at some(future)time. identical in form although issued by the selectmen of six separate towns (Medway, Holliston; Sherborn, FN12. D.P.U. No. 15192 preceded the Natick, Framingham, and Sudbury). The inference Framingham case, 355 Mass, 138, 244 thus is permissible that Edison prepared these forms, N.E.2d 281. At p. 9, of its opinion, the the granting portion of each of which is set out in the D,P.U.said of the proposed line in Sudbury margin,Fl6 11 it is agreed that (a) when the several 'Obviously * * * an additional transmission, boards of selectmen had these locations under con- line with structures about 45 feet higher than sideration, 'Edison proposed to construct on the those now occupying the right of does easement * * * lines for * * * transmission of elec- py g g way change tricity at' 13.8 KV on single wooden poles andtoth quite d 115 the character the right of way.On the other hand, it is quite clear that any ef- KV on H-framewood poles and had not developed feet upon the area coincided with the con- any plan for construction on that route of any 230 KV struction of the original * * * line * * *. line on steel towers or otherwise, and (b) that no There is no additional divisive effect upon wires in the 230 KV line will have a diameter which the town and any alleged effect upon prop- exceeds by more than one-half an inch **861 the erty values had its greatest impact when the diameter of the largest wire now used on the route. original right of way was obtained and the line constructed.We do not believe that it is FN 11.'Whereas* * * Edison ** *has peti- unreasonable for a prudent individual to n- tioned for permission to erect** *a line for ticipate that once the lines and right of way the transmission of electricity * ' * under had been established additional lines could and across the public * * * ways* * *here- well be constructed in the future. inafter specified, and notice has been given and a hearing held* * *. It is,ordered that* The towns contend that the locations issued from **Edison** *be* * * granted permission 1941 to 1953 were given in contemplation of the type to erect ** * and a location for such a line of twenty-four wires, under and across the of transmission lines then proposed and did not pro- vide, by a sort of licensing blank check, justifica- following public * * * ways* * * (list). All tion for the much larger structures now being built. of said wires, of which three (3) are to be Edison argues(a)that such indefinitely phrased per- under and twenty-one (21) are to be above mits must be taken to contemplate expansion of the ground, shall be located within a strip 250 lines of which atype of use immediately under discussion when the feet wide,the side re shown feet a pin made de_ _dated_ _ e s _on permits were issued;and(b)that there is no room for file with said petition. All such wires above implying any restrictions not expressly imposed by a board of selectmen under c, 166, ss 21, 22, and ground shall be placed at a height of not less 22'ENL 3 or under s 28 by the D.P.U. than twenty feet from the ground.' The fol- low the selectmen's signatures,a selectmen's FN 13 ,Chapter 166, s 22 (as amended certificate of notice under G.L. c. 166,s 22, and a certificate of the town clerk. through St.1948,c.550,s 36)provides that, 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 253 N.E.2d 850 Page 12. 356 Mass.406,253 N.E.2d 850 (Cite as:356 Mass.406,253 N.E.2d 850) upon petition and after notice and hearing, construction at some time in the indefinite future of a selectmen 'may by order grant* * * a loca- 230 KV line on steel towers 110 to 160 feet high.No tion(under or across a public way)for* * * doubt, a location, not expressed with precision, may (a transmission) line, specifying where the be interpreted as permitting reasonable variations poles, piers, or abutments * * * may be from, and replacements of, the particular structures placed,and in respect to overhead lines may proposed or in contemplation at the time. The pro- also specify the kind of poles,piers or abut- posed changes,however,seem to us to be substantial. ments which may be used, the number of Any doubt concerning the locations we resolve in wires or cables, which may be attached favor of the public and against the grantee and thereto,and the height to which the wires or against any implication of relinquishment of public cables may run.' Section 28 (as amended rights.See Rhyne,Municipal Law,509.The grants of through St.1961, c. 466, provides that a locations, licenses in the public ways, by the select- company 'desiring to construct a (transmis- men acting as agents of the Commonwealth (sec sion) line * * * which will of necessity pass Carroll v. Cambridge Elec. Light Co., 312 Mass. 89, through one or more cities or towns * * * 93,43 N.E.2d 340)must be within the authority,rea- whose petition for the location necessary for sonably construed,granted by s 22,the enabling stat- such line has been refused, or has not been ute (see New England Tel. & Tel. Co. v. City of granted * * * may apply to * * * (the Brockton. 332 Mass,662.664-665. 127 N.E.2d 301). D.P.U.) for such location.' After notice and At least in the absence of a clear indication to the hearing, the D.P.U. is given the following contrary in the order,exercise of that authority should powers:'If it appears* * *that the company be viewed in relation to the line under discussion has already been granted and has accepted a when the order was passed. See Jennison v.Walker, location for such line in two cities or in two 11 Gray,423,426427. See also Chandler v.Jamaica towns, or in a city and town adjoining the Pond Aqueduct Corp., 125 Mass, 544, 550. Cf. city or town because of the refusal or neglect Marsh Y. Haverhill Aqueduct Co., 134 Mass. 106. of whose * * *selectmen to grant a location 108 (right to enlarge buried pipe 'to any reasonable therefor the application is made, or if it ap- extent which would not injure the (servient) land- pears * * * that the company has already owners'); Naumkeag Steam Cotton Co. v. American been granted and has accepted locations for Glue Co..244 Mass. 506,508-509, 139 N.E.296. Cf. such line in a majority of the** *towns* * also *424Randall v. Grant. 210 Mass, 302,304. 96 * through which such line will pass, and if N.E.672:Codman v.Wills.331 Mass, 154. 158. 118 the department deems the location necessary XE.2d 94• Deacv v. Berberian, 344 Mass, 321,327- for public convenience,and in the public in- 328. 182 N.E.2d 514. The selectmen have opportu- terest, it may by order grant a location for nity reasonably to consider, in the light of the sub- such line * * * and shall have and exercise stantial changes in the line now proposed, whether relative thereto the same powers and author- using the location for the new line will surcharge the ity conferred by * * * (s 22)upon the * * * easement and will 'incommode'the public use of the selectmen and in addition to the provisions ways which Edison proposes to cross. See the of law governing such company may impose Concord case, 355 Mass. 79,87-93.242 N.E.2d 868. such other terms,limitations and restrictions See also Hewitt v. Perry. 309 Mass, 100, 105. 34 as it deems public interest may require.' N.E.Zd 489:Jasper v. Worcester Spinning& Finish- ing Co.. 318 Mass. 752, 761-762, 64 N.E.2d 89: *423 [611`71rfill"91 Under the somewhat vague Ian- Restatement: Property.ss 471,482-084,Am. Law of guage of ss 21,22,27,and?$,we think that the loca- Property,s 8.66; Powel I, Real Property,ss 407,415. tions therein mentioned are granted in relation to, We hold that, for the subtantially increased size of and refer to substantially the particular type and line now proposed,Edison must obtain locations un- magnitude of transmission line and of construction der G.L.c. 166.ss 21,22,27,and 2$,as amended. discussed when application is made to the selectmen. It cannot be inferred,**862 when selectmen consider f 101 Under_s28[as amended by St.1961,c.466]giv- and grant a request for a location of a 115 KV line on ing to the D.P.U. power, in specified circumstances, H-frame wood poles sixty-five feet to eighty feet to review the selectmen's actions in refusing a loca- high,that thereby they are granting a location for the tion for a line, the D.P.U.'s jurisdiction to act de- 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 253 N.E.2d 850 Page 13 356 Mass.406,253 N.E.2d 850 (Cite as:356 Mass.406,253 N.E.2d 850) pends upon whether Edison has received locations in ing permits in Framingham and Wayland does not other communities for the proposed transmission line preclude all further construction in those towns. We in accordance with the provisions of that section agree with the contention that G.L. c. 166.ss 21 and quoted above (fn. 13). Here Edison, for its existing 22, deal with construction upon, along, under, and lines,has such locations to cross ways except as to a across public ways and not with construction else- few ways concerning which special mention already where.The last clause of G.L.c. 164, s 72(see point has been made. The question thus arises whether the H, fn. 4) prohibits merely transmission of electricity D.P.U.'s jurisdiction under s 28 depends upon the over any land, right of way, or other easement taken necessary number of local grants of locations for the by eminent domain until rights in town ways are ob- new expanded structures as well as for the original tained. We hold that this does not prevent continued line. We think that it does. If this makes construction construction of the proposed line until such rights are impracticable in the circumstances, or if local au- granted. The injunction of August 6, 1969, is to be thorities unreasonably put local considerations above dissolved. Construction may continue if Edison is regional and Statewide needs for additional electric prepared to take the risks of later disapprovals. See power,then revision of s 28 or other statutory change the second Sudbury case, 351 Mass. 214, 224, 218 must be sought from the Legislature. The present N.E.2d 415. statutes may well be inadequate to deal with the prob- lams arising from the rapid development of transmis- 6. What has been said, we think, sufficiently deals sion lines and from the conflicts between local inter- with*426 the issues presented by the reservation and ests and broader public interests.The Legislature,if it report. It enables the parties to make appropriate de- is disposed to do so, may increase the powers given terminations concerning future proceedings affecting to the D.P.U.by s 28 to revise local action. the proposed line and the areas in which it will be necessary or desirable to seek legislative clarification *425 4. Stock Farm Road in Sudbury was laid out by or change of pertinent statutes. the selectmen on February 20, **863 and the town voted to accept it as a town way on March 12, 1958. 7,The case is remanded to the county court for fur- 'There is no evidence of record* * * that the(t)own ther proceedings consistent with this opinion. owned * * * any* * * rights in Stock Farm Road on March 12'or acquired any within thirty days after the So ordered, end of the 1958 town meeting. The road 'has been ' open for public use and used ** * for over fifty years and has been kept in repair by the town for over Mass. 1969. twenty-five years. Boston Edison Co.v.Town of Sudbury 356 Mass.406,253 N.E.2d 850 1111 It does not affirmatively appear whether, in the efforts to lay out Stock Farm Road, there was com- pliance with the procedural requirements of G.L. c. 82,ss 21-23.See Suburban Land Co.v.Town of Bil- lerica, 314 Mass. 184, 191.194, 49 N.E.2d 102, 147 A.L.R.660. It also does not clearly appear whether it was 'necessary to acquire land for' this way under s 24 (as amended through St.1958, c. 240). Whatever may be the situation of the town in relation to owners of land who may have been damaged by the laying out of the road,or persons injured on the road assert- ing rights under G.L.c.84,ss 15 and 25,as amended, we think that it,within the meaning of G.L.c. 166,ss 31,22,25, and M$,should be treated as a public way on this record. [!2]5.Edison argues,that the absence of street cross- ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. � Tr ��e l�ol�zlraoiz�ea����G Ga�.�ac�u�el� 700 am4-si��e Jl-ea! --- /2l/� Agar r (617)777-3500 October 31, 1989 Lawson Williams, Esq. Gardner & Brown 42 West Main Street P.O. Box 372 Ayer, Massachusetts 01432 RE: Request for Advisory Opinion Dear Mr. Williams: Your letter of October 10, 1989, asks the Department of Public Utilities ("Department") to render an opinion whether the Department's own engineering review of transmission lines and related facilities under G.L. c. 164, sec. 72, "may be deemed sufficient by the local building inspector so as to relieve him of his obligations for technical inspection and building permit responsibilities in a manner similar to the release that is provided for under the certification provisions of" 780 C.M.R. 108.5 and 111.2.1. We have also received a letter, dated October 11, 1989, from Mark E. Slade, counsel to the New England Power Service Company ("NEPSCo"), arguing that building inspectors do not have authority, to enforce building codes in the case of utility construction subject to Section 72. We understand that your request stems from a dispute, currently under litigation, between the building inspector of the Town of Ayer, which you represent as town counsel, and NEPSCo. This dispute arose, we further understand, when the local building inspector caused a summons and complaint to be served upon a NEPSCo employee for commencing certain work without first obtaining a building permit from the town. Boston Edison Company v. Town of Sudbury, 356 Mass. 406, 420 (1969), cited in your letter, examines legislative intent concerning the place, if any, for local regulation of transmission lines and "conclude(s] . that the building by-laws" of a town "can have no application" to electric transmission lines and their constituent structures, other than buildings usually subject to building codes. In 1983, the Court reaffirmed the conclusion of the Sudbury case in New England Page 2 Power Company v. Board of Selectmen of Amesbur 389 Mass. 69. As we read thesee� cisiens,Eie Court views the General Court's delegation to the Department of general regulatory authority over transmission facilities as an exclusive grant. You point out that the building codes at issue in the Sudbury case were local codes, whereas the State building code Ayer's inspector proposes to enforce is a statewide code and thus not subject to the argument that its enforcement would lead to the balkanization feared by the Sudbury court. In both Sudbury and Amesbury, however, the Court discussed the legislature's intent to grant affirmative transmission safety regulation to the Department, not merely its intent to prevent proliferation of local, potentially inconsistent standards. Sudbury, 356 Mass. at 419-420; Amesbury, 389 Mass. at 77-78. Moreover, local inspection, even when based oli a stdtowide code, has a strong potential for inconsistent and conflicting application. The Department's opinion is that, given the Legislature's express grants of authority, it alone may determine transmission safety concerns. This opinion is consistent with its concurrence in the exercise of inspection authority by local wiring inspectors under G.L. c. 166, sec. 32. See, Petitions of the Inspector of Wires of the Town of Amherst, D.P.U. 87-146/147 (1989). Joint enforcement authority over wiring arises from statute, and the statutory scheme provides a crucial distinction from the claim at issue in your dispute with NEPSCo. Section 32 provides for an appeal of a wiring inspector's decisions to the Department. The Department's paramount role in supervising electric distribution is thereby preVerved. In the absence of a statutory appellate mechanism at the administrative level, a local building inspector's interpretation of the local or state building codes would not be subject to Department review. An electric company could well find itself subject to conflicting requirements levied by the local building inspector and the Department. This outcome would clash with the Legislature's intent as determined by the Court. See also Opinion of the Attorney General, April 13, 1979. Y Effective January 1, 1978, the Department exercised its authority over installation, maintenance, and safety of transmission lines through 220 C.M.R. 125.00 and 126.00. While, on their face, these rules do not purport to exercise the full scope of the Department's authority in this area, see 220 C.M.R. 125.11, the rules nonetheless represent the extent to which the Department, consistent with its means of enforcement, has exercised its legislative grant of authority. Page 3 We hope that this letter will. be of service to you. in advising your client. Thank you for calling the matter to our attention. Sincere yours, Bernice K. McInty , Chairman Robert N. Werlin, Commissioner SAL Susan F. Tier Commissio r cc: Mary Cottrell, Secretary t/ Mark E. Slade, Esq., NEPSC l • �. � �. �•r I'1�.c/k�i' cam..._ r�wPaw.rsarrl�.�ro NewPngiand Power Service 95 pAsurch Drive vwataa�pn,eaaaw,txseaa otse -ww Til.Roe)35"M I Mark E.Stade ynlaAanmey • October 11, 1989 Ms. Nancy Brockway, Esq. General Counsel Department of Public Utilities 100 Cambridge Street Boston, MA 02202 Dear Nancy:. _ We spoke on the telephone last week regarding whether building permits are needed for certain work in substations. This issue is the subject of a dispute between New England Power Company and the Town of Ayer. When we spoke, you indicated that the Ayer Town Counsel had requested an opinion from you on this question and you agreed to provide me the opportunity to explain our position prior to your rendering an opinion. Our position and analysis is set -out below. Under existing Massachusetts law, it has been our understanding that construction of foundations and structures to support electrical equipment for transmission lines or in substations does not require local building permits under the Massachusetts Building Code ("MBC," 780 CMR 100 et seq.). However, we do assume that construction of buildings, e.g. control houses, storage buildings, etc., that may be associated with electrical transmission facilities, does require a local building permit. Although there are several avenues of analysis that lead to these conclusions, the overriding consideration is that the Department of Public Utilities ("Department") has been legislatively provided comprehensive authority over the construction and safety of transmission lines and ancillary electrical facilities. The existing case law leaves no doubt that local regulation' of the construction and safety of transmission lines is prohibited. Boston Edison Co. v. Sudbury, 356 Mass. 406, 420, New Encland Power Co. v. Amp urv, 385 Mass. 609, 76-78. Although the case law is not as well developed for substations, there are several reasons to assume that the same broad authority extends to substations. First, the Department's broad authority to authorize and regulate the construction of transmission lines rings hollow if local permitting authority applies to substations. A transmission line is useless if it A New England Electric System company -2- r can be deprived of its terminating substations that are necessary to control and transform the electricity to voltages suitable for distribution and consumption. Unless the Department's comprehensive authority extends to substations, it cannot fulfill its role of insuring that transmission lines are constructed so as to benefit the greater interest of the entire state, and not depend upon local preferences. ' Further, the Department routinely handles petitions for zoning exemptions for substation sites pursuant to M.G.L. c. 40A § 3. This further demonstrates that the legislature intended that the Department, not municipalities, have control over the siting and construction of substations. In the past, the Department has engaged in a broad review of all aspects of a proposed project when hearing a petition for zoning exemptions.. . �g e.g. Framingham v._ DPU, 355 Mass. 138, 146-7. The discretion afforded a municipality in the building permit process could result in local decisions regarding construction and placement of equipment which are inconsistent with a Department order on the same project. second, the Department has promulgated regulations for the construction of overhead transmission lines. [220 CMR 125 et seq.] While these regulations do not specifically address substations, many of their provisions are fully applicable to substation structures including terminating structure strength, foundations, etc. These regulations more closely address questions of. substation design and construction than the MBC which contains no specific requirements for transmission line or substation structures. If a building permit was required for substation construction, the lack of relevant standards in the MBC would likely result in it being handled under the "Controlled Construction" provisions of the MBC. Controlled Construction basically looks to a Registered Professional Engineer's Certification for assurance 'that the project was properly constructed. [780 CMR 127 et seq.] The purpose of this provision is to accommodate construction of specialized structures, which are outside the field of knowledge of the local building inspector. As all our companies' transmission and substation construction is carried out under the auspices of a registered professional engineer, it is unlikely that handlingtransmission line and substation construction outside of the MBC and the local inspection procedures will eliminate any construction inspections that would otherwise take place. Finally, we note that the position that building permits are not necessary for foundations and structures for electrical equipment is not inconsistent with the MBC. The Massachusetts State Electric Code is expressly incorporated into the MBC l in MSC § 100.5 and Appendix P. The Massachusetts State Electrical Code clearly excludes "Installations under the exclusive control of electric utilities for the purpose of . transformation, transmission and distribution of electric energy . . . .' For your reference, I am also enclosing a copy of a recent New Hampshire Superior Court decision in which a similar question was presented. In this decision, the court found that the comprehensive state licensing process preempted local requirements for building permits. If I may be of further assistance in this matter, please do not hesitate to contact me. Sincerely yours, 6CC : n .� Mark E. Slade MES:hmg enclosure